THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
NATALIE ALLEN, CNN ANCHOR: The story out of Terre Haute, Indiana, today is Timothy McVeigh's lawyers have been meeting with him to find out if he wants to try to delay his execution past the set date now, which is June 11. The attorney general has indicated that he would fight any attempt to delay McVeigh's execution.
Let's go to CNN's Susan Candiotti, who's somewhere near this bank of microphones, with other reporters waiting for the lawyers there -- Susan.
SUSAN CANDIOTTI, CNN CORRESPONDENT: Hi, Natalie -- just below that bank of microphones.
After spending about two hours meeting with their client, Timothy McVeigh, the lawyers have completed their visit, and, in fact, have driven over to this facility, where we expect them to be walking out of the door relatively soon. As I said, they spent about two hours with him, expecting him to give them the final go ahead on what they want to do, and that is to file a stay of execution, a motion, before trial Judge Richard Matsch, to give them more time to review more than 4,000 pages of material turned over by the FBI.
Here comes Robert Nigh on the right and Richard Burr on your left.
ROBERT NIGH, MCVEIGH ATTORNEY: Good afternoon.
Mr. McVeigh has given us permission to seek a stay of execution on his behalf. This decision was not easy for Mr. McVeigh. He had prepared to die, and he was ready to die on May 16 of 2001. He had previously indicated he preferred death to life in prison without the possibility of release.
It is upon principle Mr. McVeigh has decided to seek court relief, and it is based upon the government's failure to produce evidence in his case. He is convinced that the Department of Justice and the FBI will not otherwise be held to account unless he takes this action.
Mr. McVeigh has asked us to say that he understands and recognizes the impact that his decision may have upon his family, the victims in the Oklahoma City bombing case, the community of Terre Haute and others. His decision in no way stems from a desire to cause these people any additional pain or trauma. It is Mr. McVeigh's belief that this action is necessary in order to promote integrity in the criminal justice system.
Richard Burr, our legal strategist, and I have spoken to Nathan Chambers and Chris Tritiko, Mr. McVeigh's attorneys in Denver, and we have asked them to file the papers on Mr. McVeigh's behalf. Mr. Burr can explain to you the basics of what will be contained in the papers.
RICHARD BURR, ATTORNEY FOR TIMOTHY MCVEIGH: We will be filing shortly an application for stay of execution, which is quite a substantial application. The document that will be filed under seal runs to about 40 pages and has about 300 pages of exhibits to support it. Unfortunately, most of this cannot be made public because it has to do with investigative documents that are required to be kept under seal by court order, but we can describe briefly what this involves.
There is a very long and old doctrine that the Supreme Court has articulated periodically, because it doesn't happen very often, that when a fraud upon the court has been perpetrated by one of the parties to a legal proceeding, any judgment that the court makes is void.
The papers that we file today will be arguing to Judge Matsch that a fraud upon the court has been committed by the federal government in withholding massive numbers of documents from the defense and in continuing to withhold numbers of documents from the defense. We don't know how massive, but we are certain, and if given an opportunity by Judge Matsch, we will prove that there are still critical documents about this investigation being withheld by the FBI.
Some of those documents may well be being kept in other case files, but it is quite clear to us that people have been investigated carefully by the FBI, and they have never produced one piece of paper concerning those people. And we must get to the bottom of this. This proceeding is designed to do that.
Two requests will accompany these papers today. One is for stay of execution pending the disposition of this entire proceeding. And the other is that the court hold an evidentiary hearing where the fraud upon the court can be examined carefully and exposed completely.
QUESTION: Are you just discovering now that people have been investigated that you have no paper on? Isn't that something you should have seen in '97?
BURR: There are some people that we are just now discovering were investigated that we did not know about.
QUESTION: And how did you discover that now (OFF-MIKE)?
BURR: That knowledge comes from the new documents that have come since the middle of May. There are people that we have known about for some time that we had anticipated we would see paper on this time, and there is nothing.
QUESTION: As you are well aware, the Justice Department continues to insist, as well as the FBI, that they have indeed turned over everything to you -- that nothing has been withheld. And they're even going so far as to look into old cases investigated by other people that might possibly have something to do with this.
ROBERT NIGH, ATTORNEY FOR TIMOTHY MCVEIGH: Part of our submission today will include a supplement based upon yet another 302 that was produced just yesterday. And I think that when you examine that supplement, you will have additional information concerning whether or not the government produced every witness statement in the case.
QUESTION: You want a stay of execution toward what end? Do you want to do away with the death sentence?
NIGH: Well, certainly we want a stay of execution until it can be determined with certainty by an objective fact-finder what information has been withheld by the FBI and whether it would have an impact upon the integrity of the verdict.
QUESTION: And how long do you think that would take?
NIGH: It's very difficult to predict.
QUESTION: So Mr. Burr, before, your client has admitted that he bombed the federal building, at least to reporters, and he has twice waived his right to further appeals and categorically stated that there was no John Doe number two in his handwritten letter to the Houston Chronicle. What evidence do you have, if any, that these new documents would change the outcome of the conviction or either the sentence? What is your basis for the stay?
BURR: If you will recall, in Terry Nichols' trial, there was a witness who testified about seeing a Ryder truck and four other vehicles at Gary Lake State Fishing Park in Kansas the day before the bombing. One of the vehicles was loaded with many, many bags of what appeared to be fertilizer. That witness was deemed to be credible by the jury, and in interviews after Mr. Nichols' trial many of them said, we decided not to sentence him to death because we believed, on the basis of that one witness' testimony, there were other people involved.
That is a starting point for where we are right now in court. If there were other people involved and the evidence of their involvement is credible, and critically, we can't even make those judgments until the FBI provides all the information they have, then that evidence is something that certainly Tim McVeigh's jury would have wanted to have just as much as Terry Nichols' jury did have.
QUESTION: In the trial phase or in the sentencing phase?
BURR: Because we don't know the extent of what the government knows and has withheld, we don't know what its impact will be. But we are confident that if the evidence comes out as we believe it is there, that there will be some credible evidence that other people were involved and it could have had the same kind of impact on Tim McVeigh's trial as it had in Terry Nichols' trial.
QUESTION: So are you saying that your own client has not been telling the truth when he says that he acted alone and there were no other people involved?
NIGH: A decision that the court will have to make in connection with this will have to be based upon the record of the trial, the evidence presented at trial and the legal papers that were filed in connection with the 2255 which Mr. McVeigh previously filed. And that's what it has to be based upon.
QUESTION: But previously, your own client has stated outside of court that he did, in fact, bomb the Oklahoma City building?
NIGH: There is nothing in the record that Judge Matsch will have to review concerning any statements by Mr. McVeigh.
QUESTION: From what you've seen, do you feel now that your client got a fair trial? From the documents that you've seen that you can't talk about, do you feel he got a fair trial and the trial would have been handled differently given the information you've been receiving? And do you have any confidence when the AG and the FBI says you have everything now?
NIGH: Well, my opinion, of course, is not what matters. It's the opinion of Judge Matsch, in the first instance, that's going to matter in that regard. The FBI was asked apparently on 16 prior occasions to produce every witness statement in connection with the bombing investigation. And apparently on 16 separate occasions, they failed. Based upon that, I have no confidence whatsoever in any assertion that they might make at this point that everything has been produced.
QUESTION: Mr. McVeigh was at one time prepared to die. Is it your goal now to save his life?
BURR: Anybody who faces the death sentence at times during the life of their case has to prepare to die. In fact, the whole process of being on death row is a process of preparing to die. That's what happens to most people in this country who end up on death row.
It is a difficult experience, probably the most difficult experience any human being can go through. He will go through that experience again if he has to. He right now, in keeping with the statement that he's authorized us to make, he right now thinks the most important thing in his life is to help bring integrity to the criminal justice system. And his case has brought an opportunity to do that because of what the FBI has thus far revealed and because of what we believe we can expose they have not revealed. And that right now is paramount for him.
QUESTION: Mr. Burr, what is it that changed his mind? Why, this man who is prepared to die, why has he decided to give you the go- ahead to go through the courts to see if he can live?
BURR: For many years, Tim McVeigh has been deeply concerned about the overreaching of federal law enforcement authorities. When that overreaching became apparent to him in his own case, it overrode other considerations. I think, as he would put it, it caused him to put principle over personal concerns. The personal concerns that led him to decide not to challenge his conviction further have now been overridden by the paramount principle of trying to curb the overreaching of federal law enforcement authorities.
QUESTION: Well, some would continue to argue that he overreached any morals that he might have by blowing up a federal building and killing 100 people. And now he's accusing the government of overreaching its federal authority.
BURR: Well, the test of our system is whether we can provide fairness and integrity for the people who may have done or are accused of doing the worst things we can imagine. If we as a people cannot provide fairness and integrity for those accused of the worst things that humans do, then we can't protect each other. We can't have a compact of trust with each other. And it's that compact of trust that's at stake today.
QUESTION: Are you arguing he is unfairly convicted?
BURR: We hope to be in a position to argue that. Where we are right now is having a considerable amount of evidence that the FBI is still withholding information. What has been turned over and what has not been turned over, together, create a tapestry of what we believe is a fraud on the court perpetrated by the government. That certainly will, if we are allowed by the court to fully explore that, we believe we will then be in a position to argue that he did not get a fair trial and should have a new trial.
QUESTION: What evidence do you have that the FBI hasn't turned over all the documents?
BURR: We can't talk about it specifically, but I can talk about it generically. We have two kinds of information. One is we have investigated and talked to people who credibly, in our view, tell us they talked to the FBI. They gave information to the FBI. And we have never seen that back from the FBI. We have never seen the fruits of their investigation of that information.
The other kind of thing that we have is records from the FBI showing that important information about suspects, for example, was given to them. And we see no -- have continued to see no follow-up investigation, even though there are statements and sometimes statements in the press where the FBI has said they have investigated.
So that's the two kinds of clues, generically -- again, there are a number of specific examples we can't talk about -- but those are the generic ways in which we know that the FBI has still not turned over all the information that they developed -- again, not about immaterial, unimportant matters, but about very, very important matters.
QUESTION: But what about your client? Is he now suggesting that there were more people involved than him and Terry Nichols?
NIGH: We don't want to argue the merits of the filing that we're going to make today. That was not our purpose. We wanted to be able to provide you with an indication that Mr. McVeigh does want to proceed and does want to seek a stay of execution and give you an outline of the framework for the pleadings.
QUESTION: But is he changing his story?
NIGH: Of course, what Mr. McVeigh says to us in terms of any of the facts in connection with his case we cannot discuss. It would be improper for us to do so. What we had hoped to do today was to give you all an indication that he does want to seek a stay of execution and to give you the framework for the legal basis upon which we will seek that stay.
We appreciate your patience today, and we appreciate your consideration.
QUESTION: What part of the argument...
NIGH: Good afternoon. Thank you all very much.
ALLEN: Dramatic development from Terre Haute, Indiana just now, the lawyers for Timothy McVeigh announcing that he will fight to delay his execution, now set for 11 days from now.
According to his lawyers, this was not an easy decision for Timothy McVeigh. He was ready to die.
This was apparently the result of these thousands of documents that surfaced just days before Timothy McVeigh's scheduled May 11 execution date. And now, lawyers are saying that there may be even more documents that the FBI hasn't handed over, and that could be reason for Timothy McVeigh to ask for a new trial in the Oklahoma City bombing.
Let's go now to CNN's Susan Candiotti, who's live now in Terre Haute, who just heard all of this.
It sounds as though Timothy McVeigh is ready to fight in full force here after just, what, Susan, two weeks ago, was fully prepared to die.
CANDIOTTI: Fully prepared to die, although, when things started to change about two weeks ago, his lawyers began to talk differently about his state of mind, saying that he was in good spirits because, they like to point out, he now maintains that he has an opportunity to fight for what they call the principle of trying to protect the integrity of the justice system -- as they put it.
And so they say that while he was prepared to die, now he is continuing to fight on principle, despite the fact that he says that many people will be pained by this, including his own family, including the Oklahoma City bomb victims, and he even included the people of Terre Haute, Indiana.
So the important thing to look at here is exactly what it is that they cite as examples of what the government might be holding back from them. Now, because this information, they said, they have filed under seal, they can't give us anything too specific, but they indicate some generalities, as you've just heard, and that is that they are seeking more information about people who, the attorneys say, have indeed been interviewed by the FBI, yet these lawyers say they have no indication of it, or that, in fact, there has been no follow up on information provided to the FBI by members of public. That includes information, for example, on John Doe No. 2 sightings, just to name an example.
What happens from here is this, Natalie: Now that this motion has been filed, we turn to Oklahoma City trial Judge Richard Matsch, in Denver, to see what we will do next. He has the opportunity, of course, the option of asking the government to reply in writing. The judge could rule outright from the bench, or he could, in fact, schedule an evidentiary hearing, as these lawyers have asked for, to prove, as they put on, put on evidence, examples of how the government has withheld evidence from them.
So it is still unclear whether an execution, of course, will take place on June 11. If it did, that calls into question whether Timothy McVeigh would be the first federal prisoner to be executed since 1963. If indeed he is granted a stay, another execution is scheduled for June 19, a gentleman by the name of Juan Raul Garza.
Back to you.
ALLEN: Susan Candiotti, in Terre Haute, Indiana, where Timothy McVeigh is in federal prison.
John Ashcroft, again, the attorney general, has said he would fight any attempt to delay Timothy McVeigh's execution. The attorney general is traveling outside of the country today, but we're told he would issue a statement after Timothy McVeigh's lawyers made their announcement. So we may bring that to you at any time.
Let's bring right now Roger Cossack, legal analyst from Washington.
You've been listening to all of this, Roger. Now we have the lawyers talking about the possibly of a new trial. Where does this go from here, perhaps, and how does John Ashcroft fight this?
ROGER COSSACK, CNN LEGAL ANALYST: John Ashcroft will reply with papers to the court saying, of course, that there wasn't a fraud on the government, that whatever material the FBI failed to turn over, it would not be determinative of a new trial, it would not really change anything.
Let me also say that the lawyers for McVeigh are absolutely right. There is a long history in this country of, if there has been a fraud on the court, review, and if they can prove a serious fraud, perhaps even a new trial.
Having said that, I want to make it clear that this is a very, very, very difficult concept to be successful with. The notion that the FBI failed to turn over material is not in and of itself enough to justify a finding of fraud on the court. That material would have to be found to be of such importance that it would perhaps have concluded with a different result in this case. That is a very, very uphill battle for the lawyers.
But I think, really, if I could, Natalie, from a philosophical standpoint, what begins to happen here is that McVeigh almost becomes lost in the mix here, and it becomes nothing more than a catalyst for an argument over interpretation of how the judicial system should work. He finds himself now in a position of holding the government's feet to the fire, in fact, embarrassing the FBI by their failure to turn over these papers, and he becomes, in a sense, in his own mind, I suppose, a martyr for what he attempts to prove.
I think, in the long run, what's going to happen here is Judge Matsch probably will give a delay in this case. The notion of whether he is executed June 11, August 11 or November 11 is really, in some ways, irrelevant, and I think that the defense, by the prosecution and by the FBI's own failure is going to be in a good position to say, You know, judge, we have the right to at least put on evidence to show you whether or not there was a fraud in the court, and by gosh, we want you to give us the time to put it together. And you know, it's going to be very difficult to turn them down.
ALLEN: Roger Cossack, we'll continue to follow it.
For more now on the story, let's go over to Miles.
MILES O'BRIEN, CNN ANCHOR: The decision will be made in a federal courtroom in Denver, Colorado.
Shifting the focus of this story somewhat, we turn now to CNN's Gina London, who is watching the courthouse there and, specifically, the courtroom of Judge Richard Matsch, where this decision will be made -- Gina.
GINA LONDON, CNN CORRESPONDENT: Hi, Miles.
That's right. At this time we do not have confirmation that either Nathan Chambers or Christopher Tritico, the attorneys here in Denver for Timothy McVeigh have actually filed those some 40 pages of sealed motions asking, of course, as you know, as we have already heard from the attorneys there in Terre Haute, for the stay of execution and for a hearing.
When we see the actual papers being filed, we will, of course, let you know. And it there is anything else we can glean from them, although they do say they will be sealed -- there might be something that we can gather from that, but of course, it will be up to federal Judge Richard Matsch, who, of course, presided in Timothy McVeigh's trial, here in Denver, to decide when a hearing will be called and what will be going in that.
We still don't know, of course, how long a possible stay of execution will be granted, if it is, because the attorneys there in Terre Haute are not saying if they are specifying to ask for a particular number of days.
But this is where it will go down when it does get filed, here in Denver. And we will give you the very latest when we get it -- still waiting right now for either Nathan Chambers or Christopher Tritico to come over here and file the papers officially -- Miles.
O'BRIEN: Keep us posted, CNN's Gina London, at the courthouse steps in Denver, Colorado.
We are following this story, as we had been reporting to you, that after meeting with their client, lawyers for Timothy McVeigh announce they will seek a stay of execution. Possibly, this might lead to a new trial for Timothy McVeigh.
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